New DOJ Sexual Harassment Rule Criminalizes Asking for a Date

May 24th, 2013

The Department of Justice recently issued a letter to the University of Montana at Missoula which seeks to “serve as a blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault.” According to analysis by PJ Media, Reason, and others, this letter changes the accepted definition of sexual harassment to include a wide range of forms of protected speech. Essentially, the definition has been changed to include any form of unwanted sexual conduct, defined after-the-fact by the accuser, including verbal statements made on only one occasion.

Civil liberties activists are concerned that this broad wording could redefine lots of normal, innocuous activity as criminal harassment. For example, asking someone out on a date one time, even if the advance is rejected, is not considered criminal behavior by any reasonable person. This new definition would criminalize that. Also, sexually-oriented language is sometimes a part of an artistic presentation or public protected speech of certain types. It doesn’t appear that the unwanted verbal conduct has to be specifically directed at an individual in a harassing way in order to meet this definition. Check out Reason’s analysis of the new guidelines below and let’s discuss the DOJ’s efforts to criminalize dating after the jump.

Unwanted Requests for a Date Would be Criminal Under the DOJ’s Interpretation

According to the DOJ’s broadened new definition of sexual harassment, any sexually-oriented verbal utterance which is deemed offensive by anyone else, whether reasonably or not and even if it is only said one time, is harassment. This makes asking someone out on a date a very high-risk maneuver. If that person decides that a request for a date constitutes harassing behavior after the fact, then colleges would be required to take action, even if it were between two students.

Adults are also supposed to be legally allowed to use verbal communication to initiate sexual relationships as long as they don’t do so in a harassing manner. However, the DOJ’s new rules would mean that any effort to initiate a verbal agreement to begin a sexual relationship could be considered harassment, even if done so in a reasonable way. In fact, any type of innocent compliment could also be considered a crime.

The New Rules Could Affect Free Speech in the Arts

The Wall Street Journal notes that teachers could be charged with harassment for “assigning a potentially offensive book like ‘Lolita.’” A performance artist who discusses sexual topics of any kind could be charged with harassment based on the accusation of any bystander.

Individuals from sex-positive advocacy groups that attempt to raise awareness about sexual issues on campus could be charged with harassment by students who don’t agree with their views on the issues. Bands with romantic or sexual themes in songs could be charged by anyone in earshot of a public performance. Groups which hand out condoms on campus could be committing an act that constitutes unwanted sexual conduct as well.

As of right now, the guidelines appear to mainly affect colleges, but this gives a window into the Department of Justice’s view on sexual harassment, which is far outside of the mainstream. Everyone knows that asking someone out on a date shouldn’t be considered sexual harassment. Harassment laws are supposed to be there to prevent abusive and forceful behavior, not to ensure that no one is ever offended.

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About the Author: Barry Donegan

Barry Donegan is a singer for the experimental mathcore band Look What I Did, a writer, a self-described "veteran lifer in the counterculture", a political activist/consultant, and a believer in the non-aggression principle.